McGarry v The Queen

[1999] WASCA 276

McGARRY -v- R [1999] WASCA 276

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 276
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:2/1999	Heard:	7 OCTOBER 1999
Coram:	KENNEDY J PIDGEON J MURRAY J	Delivered:	6/12/99
No of pages:	24	Judgment Part:	1 of 1
Result:	Finite sentence of 5 years' imprisonment reduced to 3 years
PDF Version

Parties:	MICHAEL ALEXANDER McGARRY THE QUEEN
Catchwords:	Criminal law and procedure Sentencing Indecent dealing with a child under 13 not involving touching Three charges of personating a member of the police force in subsequently telephoning to home of victim Record of previous sexual offences extending over 13 years Whether sentence of 5 years to be served in part concurrently with a previous sentence excessive Whether eligibility for parole should have been ordered Whether indefinite sentence justified
Legislation:	Sentencing Act 1995, s 98
Case References:	Briginshaw v Briginshaw (1938) 60 CLR 336 Chester v The Queen (1988) 165 CLR 611 Clayden v The Queen, unreported; CCA SCt of WA; Library No 960268; 17 May 1996 Jones v The Queen, unreported; CCA SCt of WA; Library No 980246; 8 May 1998 Lowndes v R [1999] HCA 29, (1999) 163 ALR 483 Lowndes v The Queen (1999) 73 ALJR 1007 Powell v The Queen, unreported; CCA SCt of WA; Library No 950559; 19 October 1995 R v Dunstan, unreported; CCA SCt of WA; Library No 990074; 19 February 1999 R v Lowndes (1997) 95 A Crim R 516 R v Moffatt [1998] 2 VR 229 Thompson v R, unreported; CCA SCt of WA; Library No 980600; 19 October 1998 Thompson v The Queen [1999] HCA 43 Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 Batty v The Queen, unreported; CCA SCt of WA; Library No 980518; 14 September 1998 Bugmy v The Queen (1990) 169 CLR 525 Coulter v The Queen, unreported; CCA SCt of WA; Library No 960507; 4 September 1996 House v The King (1936) 55 CLR 499 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 R v Carr [1996] 1 VR 585 R v Chan (1989) 38 A Crim R 337 R v Cooper (1987) 30 A Crim R 19 R v Evans, unreported; CCA SCt of WA; Library No 920616; 24 November 1992 R v Gooch (1989) 43 A Crim R 382 R v Hodge (1987) 31 A Crim R 200 R v Hueston (1995) 83 A Crim R 53 R v O'Shea (1982) 8 A Crim R 219 R v O'Shea (No 2) (1997) 94 A Crim R 560 R v Podirsky (1989) 43 A Crim R 404 R v Read (1997) 94 A Crim R 539 Read v The Queen (1994) 3 Tas SR 387 Thompson v The Queen (1992) 8 WAR 387 Tunaj v R [1984] WAR 48 Veen v The Queen (1979) 143 CLR 458 Veen v The Queen (No 2) (1988) 164 CLR 465

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : McGARRY -v- R [1999] WASCA 276 CORAM : KENNEDY J

PIDGEON J
MURRAY J

HEARD : 7 OCTOBER 1999 DELIVERED : 6 DECEMBER 1999 FILE NO/S : CCA 2 of 1999 BETWEEN : MICHAEL ALEXANDER McGARRY

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Indecent dealing with a child under 13 not involving touching - Three charges of personating a member of the police force in subsequently telephoning to home of victim - Record of previous sexual offences extending over 13 years - Whether sentence of 5 years to be served in part concurrently with a previous sentence excessive - Whether eligibility for parole should have been ordered - Whether indefinite sentence justified

Legislation:

Sentencing Act 1995, s 98

(Page 2)

Result:

Finite sentence of 5 years' imprisonment reduced to 3 years

Representation:

Counsel:

Applicant : Mr R D Young
Respondent : Mr R E Cock QC & Mr E Balodis

Solicitors:

Applicant : Gunning
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
Chester v The Queen (1988) 165 CLR 611
Clayden v The Queen, unreported; CCA SCt of WA; Library No 960268; 17 May 1996
Jones v The Queen, unreported; CCA SCt of WA; Library No 980246; 8 May 1998
Lowndes v R [1999] HCA 29, (1999) 163 ALR 483
Lowndes v The Queen (1999) 73 ALJR 1007
Powell v The Queen, unreported; CCA SCt of WA; Library No 950559; 19 October 1995
R v Dunstan, unreported; CCA SCt of WA; Library No 990074; 19 February 1999
R v Lowndes (1997) 95 A Crim R 516
R v Moffatt [1998] 2 VR 229
Thompson v The Queen, unreported; CCA SCt of WA; Library No 980600; 19 October 1998
Thompson v The Queen [1999] HCA 43

Case(s) also cited:

Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621


(Page 3)

Batty v The Queen, unreported; CCA SCt of WA; Library No 980518; 14 September 1998
Bugmy v The Queen (1990) 169 CLR 525
Coulter v The Queen, unreported; CCA SCt of WA; Library No 960507; 4 September 1996
House v The King (1936) 55 CLR 499
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
R v Carr [1996] 1 VR 585
R v Chan (1989) 38 A Crim R 337
R v Cooper (1987) 30 A Crim R 19
R v Evans, unreported; CCA SCt of WA; Library No 920616; 24 November 1992
R v Gooch (1989) 43 A Crim R 382
R v Hodge (1987) 31 A Crim R 200
R v Hueston (1995) 83 A Crim R 53
R v O'Shea (1982) 8 A Crim R 219
R v O'Shea (No 2) (1997) 94 A Crim R 560
R v Podirsky (1989) 43 A Crim R 404
R v Read (1997) 94 A Crim R 539
Read v The Queen (1994) 3 Tas SR 387
Thompson v The Queen (1992) 8 WAR 387
Tunaj v R [1984] WAR 48
Veen v The Queen (1979) 143 CLR 458
Veen v The Queen (No 2) (1988) 164 CLR 465

(Page 4)

1 KENNEDY J: The applicant was presented in the District Court on an indictment containing the single count that, on 18 December 1997, at Palmyra, he indecently dealt with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code. He pleaded guilty to the charge. Pursuant to s 32 of the Sentencing Act 1995, three complaints pending in the Court of Petty Sessions at Perth charging the applicant with personating a member of the police force, contrary to s 16(1) of the Police Act 1892, were also dealt with by the learned sentencing Judge.

2 The facts presented to his Honour were that, following the publication in the Community Newspaper on 16 December 1997 of a promotional photograph depicting and naming the complainant, an 11-year-old girl, and six other young girls attending the Richmond Primary School, the applicant, through the telephone directory, located the home address and telephone number of the complainant. She was not otherwise known to him.

3 Having located the complainant's address, at approximately 9.30 pm on 18 December 1997, the applicant went to her home. He observed the house for a short time and, there being no vehicles or adults to be seen, he entered the rear yard of the house through a side gate. Once in the yard, the applicant, looking through a window, saw the complainant and her 14-year-old sister inside the house. He attracted the attention of the complainant by tapping on the window and, as she approached the window, he exposed his erect penis and masturbated until ejaculation. He then left the premises.

4 The applicant had been standing in close proximity to the complainant at the time of the offence, although they were separated by the glass of the window. By s 319(3)(c) of the Criminal Code, a reference to a person indecently dealing with a child, in the Chapter in which s 320 is to be found, includes a reference to that person committing an indecent act in the presence of the child.

5 The applicant subsequently made three telephone calls to the complainant's home. Two of the calls were made on 24 December 1997 and one was made on 4 January 1998. The complainant's sister answered each of the calls. On each occasion, the applicant personated a police officer, falsely giving his name as Sergeant Phillips of the Fremantle Station. The applicant claimed that he had telephoned the complainant's house to find out whether his offence had been reported to the police, although his statement to the police that he was masturbating at the time of at least one of the telephone calls suggests that his purpose was

(Page 5)

otherwise. He said that he told the person who answered the telephone on the first occasion, "We have got the guy down here" and he then asked her what she thought "the guy" had been doing. He indicated that "the guy" had said, in addition, a few other things, including that he had watched the complainant having a shower. He had not in fact done so. The applicant ended this conversation by saying, "I will ring back later". He then put down the receiver. A few minutes later, he again telephoned the complainant's home, saying, "The guy has just been telling us what he was doing outside the window. He was masturbating." In the course of one of the conversations he asked whether the complainant's parents were home at that time. They were not.

6 On 4 January 1998, the applicant made the third telephone call to the complainant's home. Once again he identified himself as a police officer. His recollection was that the person who answered the telephone told him that she would go and get her mother. This caused him to hang up; but the call was traced back to the applicant, leading to his eventual prosecution.

7 The applicant has a substantial history of various forms of sexual offending. In 1985, he was placed on a good behaviour bond for 12 months in respect of a conviction for loitering, which he admitted was sexually related. Less than three months later, he was convicted of wilful exposure and was fined the sum of $150. Some three weeks later, he was again convicted of an offence of wilful exposure and he was sentenced to 3 months' imprisonment. In 1984, in the District Court, the applicant had been placed on probation for 2 years for breaking and entering a dwelling with intent. His convictions for loitering and wilful exposure constituted breaches of the probation order, as a consequence of which he was sentenced to a further term of 6 months' imprisonment. In September 1989, he was convicted once again of wilful exposure and he was fined $1,000. In April 1991, he was convicted of the archaic offence under s 43(1) of the Police Act 1892 of being suspected of having evil designs, in respect of which he was fined $100. In the same month, in the Supreme Court, he was convicted on 21 counts of aggravated indecent assault, four counts of aggravated sexual assault and seven counts of wilful exposure. The victim of the assaults was one of his daughters. For these offences, an effective head sentence of 7 years and 8 months was imposed. An order was made for his eligibility for parole. In August 1994, in the District Court, the applicant was convicted on two counts of indecently dealing with a child whom he knew to be a lineal relative. The victim once again was one of his daughters. For each of these offences the applicant was sentenced to 2 years' imprisonment, to be served

(Page 6)

concurrently. Having regard to the fact that the offence had been committed while the applicant was on parole, the learned sentencing Judge declined to direct that the applicant be eligible for parole in relation to these sentences.

8 His Honour characterised what had occurred on 24 December 1997 as an extremely serious and disturbing incident of sexual deviation involving children. He rightly highlighted the predatory behaviour of the applicant as a feature of the applicant's offending which gave rise to concern, and described his behaviour overall as "sinister". In support of this view, he quoted from a report from the manager of the Sex Offender Treatment Unit and a social worker in that unit. His Honour indicated that the offence, standing alone, was not at the highest end of the scale and he fixed a starting point of 7 years' imprisonment, the maximum sentence for the offence being 10 years' imprisonment. From that starting point, he deducted a period of 2 years, having regard to what he accepted as the applicant's "fast track" plea. This represented a discount of just under 30 per cent. A further factor taken into account by his Honour was the sparing of child witnesses the ordeal of a trial.

9 The learned sentencing Judge then dealt with the matters of eligibility for parole, the sentencing on the personation charges and the making of an order for indefinite imprisonment in the following terms:

"I am now looking at the situation where I am informed that you owe somewhat 1,000 days to the Parole Board which is a factor that is giving me some concern at the moment and I am finding some difficulty with this sentencing exercise simply because, I think, of the lack of clear parameters for a declaration under s 98 [of the Sentencing Act 1995] but at the end of the day I am persuaded to the balance of probabilities that such declaration ought to be made and I am going to make such a declaration that there will be a term of imprisonment of 5 years. It will date from 1 December. There will be no eligibility for parole.

There will be three months on each of the other counts to be served concurrently but upon what is before me and upon this constant history of sex offending against younger females since 1991, on the evidence of the reports, on the evidence of the fact that previous detention has not operated to dissuade this offender I do come to the conclusion that he will be a danger to part of society because of a clear risk that he will commit other

(Page 7)

indictable offences so therefore I am making that declaration of indefinite imprisonment."

10 His Honour backdated the sentences to operate from 30 October 1998, 41 days before the date of sentencing. Furthermore, although, at the time of sentencing, the applicant had been said to "owe" some 1,000 days to the Parole Board, on the hearing of the appeal the applicant's counsel indicated that 901 days were owing, a figure which I would accept as being correct. The learned sentencing Judge made no order that the sentences which he was then imposing should be served cumulatively upon the existing unexpired sentence. They are therefore to be served concurrently - see Sentencing Act, s 88(1). The consequence is that the additional period which the applicant will serve, either in custody or in the community, by reason of the present offences, may be substantially less than it would have been had his Honour directed the sentences to be served cumulatively, depending, however, upon the decision of this Court regarding his indefinite sentence.

11 The applicant, who was then acting in person, filed a notice of application for leave to appeal against his sentences on the following grounds:

"1. The sentence imposed of 5 years' imprisonment was manifestly excessive.

2. The learned sentencing Judge erred in refusing parole.

3. The learned sentencing Judge erred in imposing a sentence of indefinite imprisonment."

Those grounds, which are, to say the least, unhelpful, remained unamended, although the applicant was subsequently represented by counsel.

12 The offence of indecent dealing, the maximum sentence for which is 10 years' imprisonment, covers an extremely wide range of conduct. Although in this case there was no physical interference with the child, the premeditated and predatory nature of the applicant's behaviour, together with the aggravation resulting from the subsequent telephone calls to the complainant's house, confirm the seriousness of his offence. At the time of the principal offence, the complainant and her sister, aged 14, were being looked after by their cousin, a young woman aged 18, during a short period while their parents were away on holidays. The impact of the events of that night upon the complainant and her sister has been

(Page 8)

significant. They have been left with a grave sense of insecurity, and the complainant has since experienced nightmares. The complainant's parents, most understandably, have been greatly upset that her childhood innocence has been corrupted by the applicant's behaviour and by the subsequent explanations which have had to be given to her concerning his conduct.

13 A pre-sentence report from the Sex Offender Treatment Unit sets out the applicant's background and makes an assessment of the risk of his offending in the future. The applicant was born on 14 July 1961. He was the youngest of five children. He was almost continually in trouble at school and at home. His father had a history of inappropriate verbal and physical sexual behaviour towards adolescent female children and grandchildren within the family, and he was emotionally abusive to the applicant. The applicant claims he has never been without a girlfriend for long. However, he acknowledged to a former community corrections officer that he had chosen women with children of the age to which he has a sexual attraction. He himself has had five children from three relationships. Shortly after his arrest in relation to the present offences, he met and formed a relationship with his present partner. They hope eventually to marry. His partner has a daughter aged 15.

14 The applicant has had a good employment record. Terms of imprisonment aside, it appears that he has only been unemployed for approximately three months of his adult life. He admits to having previously consumed alcohol to excess, but he claims to have stopped drinking spirits in 1991 and, since about the end of 1997, he has consumed no alcohol at all. He does not have any drug problem. He joined Sexaholics Anonymous after committing his current offences. There is, however, not a great deal of information before us concerning this organisation, which claims to have set up a programme of recovery for those who desire to stop their sexually self-destructive thinking and behaviour. It is based on Alcoholics Anonymous. The applicant is one of four members of Sexaholics Anonymous who meet twice weekly. The pre-sentence report notes that the philosophy of his current support group appears to place responsibility for his behaviour outside himself. There does not appear to be any expert psychological or psychiatric assistance provided for the benefit of the members.

15 Although the report indicates that the applicant seems to have developed good insight into his sexual offending behaviour, he describes his problem as the compulsive aspect of behaviour which he finds difficult to control when he is experiencing stress. His apparent sorrow at having

(Page 9)

committed the offences seems to have had more to do with the consequences which he faced at the time of preparing the report. He admits that he has the ability to suspend victim empathy and states that, if he considered the feelings of his victims, he might have felt upset, and, accordingly, he does not allow himself to do so. He feels that previous sex offender treatment programmes within the Ministry of Justice have failed to address the addiction or compulsive nature of his offending behaviour.

16 In summary, the applicant has a 13 year old record of sexual offending, although he admits to inappropriate sexual behaviour from the age of 11. His sexual offending is described as being well entrenched and it is considered that he does not have any strong personal convictions regarding recidivism which would assist him not to re-offend. On the question of risk assessment, the report suggests that, given his sexual history, his response to previous therapeutic interventions and his self-admitted ability to suspend empathy for his victims, he presents a high risk of re-offending in a sexual manner. The report concludes that he has an entrenched range of sexually deviant behaviours, consisting, it is said, of both "hands on" and "hands off" offences. He has demonstrated his dangerousness towards female children with whom he has come into contact and has also developed a range of paraphilic activities, such as wilful exposure and voyeurism, which he appears to be incorporating into his sexual offending behaviour. The current offences have progressed in seriousness from prior offences, in that an element of predatory behaviour has been introduced into his sexual offending repertoire.

17 It should be emphasised that, in sentencing the applicant for the offence of indecent dealing, he was not being sentenced for his past offences. It was simply a case of his not receiving the benefit of any mitigation of his sentence by reason of favourable antecedents. The principle of proportionality is undiminished at this stage in the sentencing process. By way of mitigation, it should be noted that the applicant had been entirely frank with the police and that he had given an early indication of his intention to plead guilty. Furthermore, it was necessary to take into account that he already owed 901 days to the Parole Board.

18 While acknowledging the seriousness of the offence of indecent dealing, however, and recognising its effect on the victim, in my view, it can find its place no higher than in the middle range of offences of indecent dealing, which, as I have indicated, span a very wide range of offending behaviour from the extremely serious to the relatively minor. Accordingly, a starting point of 7 years, in my respectful opinion, is so

(Page 10)

high as to fall outside the range of the exercise of a sound discretionary judgment and I consider that, in imposing a sentence of 5 years, after taking mitigatory factors into account, the discretion of the learned sentencing Judge miscarried. I would substitute for this period a period of 3 years' imprisonment. The order for backdating should stand. However, the sentence should, in my opinion, be directed to be served cumulatively upon the existing sentence. No basis has been demonstrated for permitting the sentences to be served concurrently, concerning as they do unrelated offences, in circumstances where no consideration of the totality principle is necessary.

19 In relation to the appeal against the decision not to grant the applicant parole, his history of breaching probation and parole, and in particular the fact that the present offences were committed while he was on parole, clearly outweigh such factors as might otherwise have supported the making of such an order. I would not interfere with the sentencing Judge's decision not to order eligibility for parole.

20 The ordering that the offender be imprisoned indefinitely raises a far more difficult problem. Section 98 of the Sentencing Act 1995, which empowers a superior court to order an offender to be imprisoned indefinitely, provides as follows:

"(1) If a superior court -

(a) sentences an offender for an indictable offence to a term of imprisonment;

(b) does not suspend that imprisonment; and

(c) does not make a parole eligibility order under Part 13 in respect of that term,


it may in addition to imposing the term of imprisonment for the offence (the "nominal sentence") order the offender to be imprisoned indefinitely.

(2) Indefinite imprisonment must not be ordered unless the court is satisfied on the balance of probabilities that when the offender would otherwise be released from custody in respect of the nominal sentence or any other term, he or she would be a danger to society, or a part of it, because of one or more of these factors:

(Page 11)

(a) the exceptional seriousness of the offence;

(b) the risk that the offender will commit other indictable offences;

(c) the character of the offender and in particular -


(i) any psychological, psychiatric or medical condition affecting the offender;

(ii) the number and seriousness of other offences of which the offender has been convicted;


(d) any other exceptional circumstances.

(3) In deciding whether an offender is a danger to society, or a part of it, the court -

(a) is not bound by section 6 but is bound by any guidelines on the imposition of indefinite imprisonment in a guideline judgment given under section 143; and

(b) may have regard to such evidence as it thinks fit."

21 Section 6, which is referred to in s 98(3), sets out certain principles of sentencing. Those principles include the requirement that the sentence imposed on an offender must be commensurate with the seriousness of the offence.

22 It is well established that a sentence of indefinite imprisonment is an exceptional sentence, and one which is not lightly to be imposed. A prisoner does not know at the commencement of his sentence how long the term which he will be required to serve will be. His or her ultimate release is dependent upon an executive act, the making of a parole order under Pt 3 of the Sentence Administration Act 1995. Such an order may be made at any time after the sentence of indefinite imprisonment begins - see Sentencing Act, s 101. Under s 20 of the Sentence Administration Act, the Parole Board is required to give the Minister a written report about a prisoner serving an indefinite term one year after the day on which the sentence began, and at three yearly intervals thereafter. By s 14, the Minister may at any time request the Parole Board to report about a person sentenced to indefinite imprisonment and it must give the Minister such a report whenever it is requested to do so by the Minister, and

(Page 12)

whenever it thinks there are special circumstances which justify its doing so.

23 The High Court considered the former s 662 of the Criminal Code, which was the precursor of s 98 of the Sentencing Act, in Chester v The Queen (1988) 165 CLR 611. In the joint judgment of Mason CJ, Brennan, Deane, Toohey and Gaudron JJ, at 617, they referred to the power to impose an indefinite sentence as being an extraordinary power, "to be exercised with the object of protecting the public from the commission of further crimes by the person directed or sentenced to be detained for an indeterminate period". They added that it was not so plain that the object was to protect the public from persons who have a propensity to commit serious, as distinct from violent, crimes. It conferred on the sentencing Judge, they observed, a large discretionary power without specifying a precise criterion according to which the power was to be exercised. Having regard to s 661, which then dealt with habitual criminals, it was not intended to protect the community from the crimes which would be committed by such criminals. They referred at 618 to its now being firmly established that the common law did not sanction preventive detention and that "[t]he fundamental principle of proportionality does not permit the increase of a sentence of imprisonment beyond what is proportional to the crime merely for the purpose of extending the protection of society from the recidivism of the offender". They concluded, at 618 - 619:

"The exercise of the power conferred by s 662 should be reserved for those very exceptional cases which did not attract the operation of s 661 of the Code or for which s 29(1) of the Mental Health Act is unlikely to be appropriate and in which the sentencing Judge is satisfied by acceptable evidence that the convicted person is, by reason of his antecedents, character, age, health or mental condition, the nature of the offence or any special circumstances, so likely to commit further crimes of violence (including sexual offences) that he constitutes a constant danger to the community. The stark and extraordinary nature of punishment by way of indeterminate detention, the term of which is terminable by executive, not by judicial, decision, requires that the sentencing judge be clearly satisfied by cogent evidence that the convicted person is a constant danger to the community in the sense already explained."

24 Section 661 of the Code was repealed with the coming into operation of the Sentencing Act and habitual criminals are no longer the subject of

(Page 13)

separate treatment. Indefinite imprisonment can now only be imposed upon an habitual offender if he or she falls within the scope of s 98. Furthermore, s 98 has extended the ambit of the former s 662 and has settled the requisite standard of proof as being on the balance of probabilities, although in this connection, having regard to the gravity of the consequences flowing from the finding, the well known words of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336, at 363 - 364, should be borne in mind. The test, which is directed to the time at which the prisoner would otherwise be released from custody in respect of the nominal sentence, is that he or she would be "a danger" to society, or a part of it, by reason of one or more of the factors specified in s 98(2). Significantly, the fundamental principle of proportionality is said no longer to bind the court. But, although the principle of proportionality does not now bind the court, it is clear that it has not been entirely done away with for the purposes of s 98. The court is still entitled to take that principle into account if it considers it appropriate to do so. Furthermore, the test of the prisoner being "so likely to commit further crimes of violence (including sexual offences) that he constitutes a constant danger to the community", as laid down in Chester's case, has been somewhat reduced in scope. The terms of this section are to be contrasted with those of s 18B of the Victorian Sentencing Act 1991, which was considered by the Victorian Court of Appeal in R v Moffatt [1998] 2 VR 229.

25 In the recent decision of the High Court in Lowndes v The Queen (1999) 73 ALJR 1007, Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, in a joint judgment, gave consideration to the provisions of s 89 (which deals with when an offender may be made eligible for parole) and s 98 of the Sentencing Act. At 1009, they said:

"The issues which arise under ss 89 and 98 respectively are in a number of respects different, and the requirements of each section, when it arises for consideration, must be determined separately. Nevertheless, as in the present case, there may be a substantial degree of commonality between the facts which are relevant to the discretionary considerations which arise under s 89 and the facts which are relevant to the discretionary considerations which arise under s 98. In a case where the prosecution is inviting a court to make an order under s 98, it will, by hypothesis, be opposing the making of an order under s 89, and it may be relying upon substantially the same primary facts for each argument. Similarly, counsel for an offender who is pressing for a parole eligibility order, and resisting an order under s 98, will probably be addressing common considerations

(Page 14)

of primary fact, although their ultimate discretionary significance will need, in due course, to be related to the respective statutory provisions. Where such a contest occurs, the corollary of the decision that a parole eligibility order should be made is that an order under s 98 will not be made. Although the converse is not true, in that a refusal to make an order under s 89 will not necessarily be followed by a decision to make an order under s 98 and although at the point of ultimate decision making, the first question that will arise is whether a parole eligibility order should be made, nevertheless it is not surprising that, as in the present case, the reasoning of a court might treat the two issues as closely related."

26 The court went on to observe, at 1010, that the effect of s 98(2) is that the condition of the exercise of the power is that the court is satisfied on the balance of probabilities that, at a future time, when the offender would otherwise be released, he or she would be a danger to society, or a part of society, because of one or more factors. Thus, the court said, what is involved is a decision about a state of affairs that will exist at a time which may be several, perhaps many, years ahead. The relevant "state of affairs" is a form of danger. That will usually involve an evaluation of risk and, perhaps, of steps that may be taken to avoid or reduce the risk. The concept of danger to society, or a part of it, it was said, may also involve difficult questions of judgment.

27 The section was again considered in Thompson v The Queen [1999] HCA 43. At [18], Kirby J observed:

"Where there was any possibility that an order of indefinite imprisonment might be made, it was essential that the procedures observed should be regular and scrupulously thorough and that the materials, including the pre-sentence reports, should be as adequate and complete as fairness to the prisoner required."

28 At [19], his Honour continued:

"As Hayne JA pointed out in Moffatt [1998] 2 VR 229 at 255, it is fundamental that the power to order indefinite imprisonment should be sparingly exercised and then only in clear cases. I would add that it is fundamental that it should only be exercised following the most careful hearing at which all relevant material is before the judge or judges responsible for making such an

(Page 15)

order. It is not something to be hurried. It is not a course to be dealt with on materials known to be incomplete or otherwise insufficient."

29 In the present case, the remarks of the learned sentencing Judge in relation to the imposition of the indefinite sentence were brief. He found that, in terms of s 98(2) of the Act, the applicant would be a danger to a part of society when the applicant would otherwise be released from custody. And he so found because of the risk that the applicant will commit other indictable offences - s 98(2)(b). His Honour did not expressly rely upon the offences for which he was sentencing the applicant being of "exceptional seriousness". Nor did he expressly rely upon the character of the applicant as providing the foundation for the order. And he identified no "other exceptional circumstances". His Honour did not elaborate upon the "other indictable offences" although, obviously enough, they must have been of the nature of sexual assaults or indecent dealings. Loitering and wilful exposure, for which the applicant has many convictions, are simple offences under s 43(1) and s 66(11) respectively of the Police Act 1892. In relation to the extent of the risk which the applicant posed, the letter from his present partner, which was not challenged, suggests that he is a very good step-parent to her daughter, and indicates that the three of them have had individual interviews with the Child Welfare Department (presumably now the Family and Children's Services) and that the department is happy with their situation and confident of her daughter's safety. Nor, it appears, has the department seen sufficient cause to intervene in the applicant's access to his other daughters.

30 Counsel for the applicant maintained that the report before his Honour was not sufficiently cogent to allow for the conclusion that the applicant would be a constant and continuing danger upon his release. Not without initial doubts, I now agree. In my opinion, the material before his Honour was not sufficient to warrant the ultimate step of imposing an indefinite sentence. In this respect, the material in the present case contrasts starkly with the nature of the material available in Powell v The Queen, unreported; CCA SCt of WA; Library No 950559; 19 October 1995, which was cited by counsel for the Crown, and in Moffatt's case (supra). There has apparently been no psychological or psychiatric examination of the applicant, no report on any such examination having been referred to in the report which was before his Honour. The qualifications and experience of the signatories to the report have not been provided. Moreover, the Crown's submission that an indefinite sentence should be imposed was made in less than convincing

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circumstances. Counsel for the Crown informed his Honour that he had only received the brief on the previous day and that he had only come to the conclusion on that night "that that ought to be the way it goes". No prior notice had been given to the applicant of the making of the submission. The sentencing was adjourned by his Honour and another prosecuting counsel appeared at the adjourned hearing. She commenced by saying that the Crown maintained its submission "that your Honour at least considers s 98 of the Sentencing Act and I don't resile from what was said before in relation to that". It needs to be stressed again that the power to order an indefinite sentence should only be exercised following a most careful hearing, at which all relevant material is before the Judge, that material being as adequate and complete as fairness to the prisoner requires.

31 In the circumstances, I would grant leave and allow the applicant's appeal against his fixed sentence to the extent of substituting a sentence of 3 years' imprisonment. I would order that this sentence be served cumulatively upon the sentence which he was serving at the time of sentencing by his Honour. The sentence should run from the date of sentencing.

32 The applicant appeals as of right in relation to the sentence of indefinite imprisonment - see s 688(1a)(a) of the Code. In the circumstances, I would allow that appeal and quash that sentence.

33 PIDGEON J: The facts are set out in the reasons of Kennedy J.

34 In my view it was open to the learned sentencing Judge to reach the view that the applicant presented a danger to society within the meaning of s 98(2) of the Sentencing Act 1995. The first matter to consider under that section is the exceptional seriousness of the offence. Even if the offence did not come in this category, it would be open to reach the view that the prisoner is a danger to society by reason of the other factors referred to in that sub-section. I would, however, regard this offence in the circumstances in which it was committed, as being of exceptional seriousness, having regard to the planned and deliberate way it was committed. The complainant was a primary school student, aged 11, who, with a number of other of her students, appeared in a group photograph in a newspaper because of the work the students were doing to promote boat safety. The applicant saw this photograph, picked out the complainant, whom he did not know, and looked up her telephone number, thus ascertaining her address. Two days later, in the evening, he went to the front of that address. He had the premises under observation and noticed

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that there were no adults or vehicles. He then opened a side gate and he entered the rear yard. He looked through a window and saw the complainant and her 14 year old sister. He tapped on the window. The complainant looked at the window and the applicant then exposed his erect penis and commenced to masturbate until ejaculation. The applicant and the complainant remained separated by the window. Some six days later on Christmas Eve 1997, the applicant phoned the complainant's home. He impersonated a police officer and discussed the offence that had been committed. He repeated this on 4 January.

35 The next serious aspect is that the applicant has a history of offending of this type. He had, as I shall later mention been before both superior courts and courts of petty sessions for sexual offences and was on parole when he committed these offences. His earlier offences include wilful exposure, loitering and many acts of an aggravated and sexual nature. It is of particular seriousness that a man of this background who had undertaken not to break the law as a condition of his being released on parole and who was attempting to undergo a programme not to offend again, should so deliberately offend in this manner. He entered private property at night knowing his own weaknesses. Objectively it is of seriousness that a man of this type, at night, should be in the backyard of residences.

36 These facts of themselves would indicate that the applicant is unable to prevent himself from offending in circumstances where he has undertaken not to offend and is under supervision with a view to preventing further offences. It is of particular concern that the offence was not spontaneous, but was deliberately planned.

37 The next factor that his Honour is required to consider in order to see if he is satisfied that the offender is a danger to society is the character of the offender and in particular the number and seriousness of other offences of which he has been convicted. There were prior to his being presented on indictment in 1991, three offences of wilful exposure and one of evil designs. In 1991 he was sentenced to a term of 4 years imprisonment on four counts of aggravated sexual assault and there was a cumulative sentence of 18 months imprisonment resulting from 21 counts of aggravated indecent assaults. At the same time he was sentenced for a further 7 counts of wilful exposure. Three years later he appeared on indictment on two further counts of indecently dealing with his children. This would have occurred whilst he was on parole in respect of the earlier offences. This history, combined with the type of offence for which he was before his Honour, committed in the deliberate manner it was whilst

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on parole, would of itself lead to the inference that he is a danger to society. This inference is supported by the confidential specialist report before his Honour. This report under the heading of "Risk Assessment" said that given his sexual history, his response to previous therapeutic interventions, and his self-admitted ability to suspend empathy for his victims, the applicant is considered to present a high risk of re-offending in a sexual manner. His Honour quoted from parts of this report and in particular, quoted from the last parqagraph of the summary which said:

"Notwithstanding his unfortunate childhood, Mr McGarry is now an adult who has demonstrated his dangerousness towards female children with whom he comes into contact. He has also developed a range of paraphilic activities, such as wilful exposure and voyeurism which he appears to be incorporating into his sexual offending behaviour. It is concerning that Mr McGarry's current offences appear to have progressed from prior convictions in that an element of predatory behaviour has been introduced into his sexual offending repertoire."

38 The learned sentencing Judge said he would take up that comment and say that reference to predatory behaviour is a very concerning aspect of this offending and one that his Honour would describe overall as sinister. I consider his Honour's remarks show that he made a proper appreciation of s 98(2) and I consider reached a proper conclusion.

39 I have reached the view in respect of the finite sentence that as the applicant did not actually enter the house and remained beyond the window, the appropriate starting point should not have exceeded 5 years. The offence was nevertheless very serious and this would mark the seriousness of the offence. I would reduce it to 3 years by reason of a "fast-track" plea and would allow the appeal to this extent.

40 MURRAY J: I am grateful to have had access to the reasons for decision published by Kennedy J. They relieve me of the need to discuss much of the relevant material. I wish only to make a few brief observations of my own.

41 In my respectful opinion this is firstly the sort of case which demonstrates how important it is when the exercise of sentencing discretion may involve the imposition of indefinite imprisonment under the Sentencing Act 1995 (WA), s 98, to keep firmly in mind the need, when imposing a sentence of imprisonment for the offence before the court, for that sentence to be proportionate to the criminality involved in

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the commission of that offence. For obvious reasons, having regard to the purpose for which indefinite imprisonment is imposed, and because indefinite imprisonment is imposed in addition to the finite sentence already imposed, the court deciding to make such an order is not bound by s 6 of the Act and the principle of proportionality (s 98(3)(a)). No such provision applies to the accompanying sentence of imprisonment. In relation to that sentencing exercise, the primary sentencing directive contained in s 6(1) that "a sentence imposed on an offender must be commensurate with the seriousness of the offence" remains firmly in place.

42 This offence of indecent dealing with a child under the age of 13 years, contrary to the Criminal Code s 320(4), was punishable by a maximum of 10 years imprisonment. That may be considered to be an appropriate indication of the seriousness of the offence having regard to the wide range of conduct which may constitute indecent dealing with such a child. Having regard to the age of the child, of course, consent is irrelevant, but to deal with a child includes doing any act which, if done without consent, would constitute an assault upon the child: s 319(1). By s 319(3)(c) the term is given an extended meaning to include the commission of an indecent act in the presence of the child. Section 319(1) defines the term "indecent act" inter alia as an indecent act which is committed in the presence of, or viewed by any person.

43 This therefore was a case of indecent dealing with the 11-year-old child named in the indictment because, while outside the house but in view of the child through a window, the applicant exposed his erect penis and masturbated to ejaculation. That was a disgusting offence which rightly attracted the concern of the learned sentencing Judge. The victim impact statement from the child's parents reveals that thankfully, the child, although suffering trauma as a result of the commission of the offence, appears to be coping relatively well. That may be put down to the sound common sense of the approach taken by her parents, but they are justifiably angry that as a result of the commission of the offence and the subsequent explanation of the offender's actions which the parents have had to give the child, her childhood innocence has been lost in most unpleasant circumstances.

44 The learned sentencing Judge expressed the view that this was an offence which was "not at the highest end" of the scale of offending which might be encompassed in such a charge. His Honour went on to say that he would have sentenced the applicant to 7 years imprisonment had it not been for the fast track plea of guilty which caused him to deduct 2 years

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from the 7 which he would otherwise have imposed. It is clear therefore that having regard to the matters concerned with the commission of the offence, and the antecedents of and matters personal to the offender, his Honour would have imposed a term of 7 years imprisonment in the context of a maximum of 10 years imprisonment being available.

45 In my respectful opinion, the exercise of discretion miscarried at that point. I am forced to the view that, having regard particularly to the circumstances surrounding the commission of the offence, the term of 5 years imprisonment imposed was simply too high, particularly when one has regard to the range of conduct which may constitute an offence under the relevant section of the Code.

46 By far the most serious aspect of the commission of the offence was that it was planned. The child was identified and the location of her home identified. The applicant pursued the commission of the offence when he discovered that the house had the appearance that no adult member of the family was home. Of course, his conduct in making the later telephone calls was a matter for grave concern, but this conduct resulted in offences of personation, contrary to the Police Act 1892 (WA) s 16(1), for which separate concurrent sentences of 3 months imprisonment were imposed. In the circumstances of this case I also would substitute a sentence of 3 years imprisonment for the offence of indecent dealing.

47 It was a separate question from the length of the term to be imposed whether the sentence should be ordered to be served cumulatively upon the unexpired balance of a previous term. His Honour appears to have made the decision that he should not make such an order. That decision has neither been challenged by a Crown appeal nor debated on the hearing of this application. In the circumstances, in my respectful opinion, it would be inappropriate for this Court in re-sentencing the applicant to alter that decision. The sentence I would impose should be left to take effect from the date originally ordered, 30 October 1998.

48 The applicant's challenge to the order of indefinite imprisonment is based on a ground of appeal which simply alleges that the learned sentencing Judge erred in imposing indefinite imprisonment. As the matter was developed in argument, however, it appeared that the challenge was to the findings made by the learned sentencing Judge at two levels.

49 The remarks of his Honour in imposing indefinite imprisonment were certainly brief. His Honour expressed himself to be in some

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difficulty by reason of the lack of guideline judgments of the Court of Criminal Appeal dealing with this issue. There are indeed, however, a number of cases where this Court has expressed its views about the proper operation of the Sentencing Act, s 98. His Honour's remarks imply that he was aware of such cases.

50 There are a number of cases in which the court has dealt with appeals concerned with the application of the section and whether it was justified or required by the circumstances of the particular case. Reference may be made to such cases as Clayden v The Queen, unreported; CCA SCt of WA; Library No 960268; 17 May 1996; Thompson v The Queen, unreported; CCA SCt of WA; Library No 980600; 19 October 1998, (as to which see the recently delivered decision of the High Court in Thompson v The Queen [1999] HCA 43) and perhaps most recently R v Dunstan, unreported; CCA SCt of WA; Library No 990074; 19 February 1999.

51 There have also been cases where this Court has discussed the operation of s 98 generally and has given guidance upon it to sentencing Judges. Reference may be made to the decision of Jones v The Queen, unreported; CCA SCt of WA; Library No 980246; 8 May 1998 per Murray J, with whom Walsh and Wallwork JJ agreed, at 10 - 17, the earlier decision of R v Lowndes (1997) 95 A Crim R 516 per Malcolm CJ, with whom Pidgeon and Walsh JJ agreed, at 522 - 524, and on appeal to the High Court, Lowndes v R [1999] HCA 29, (1999) 163 ALR 483, 487 - 488. In my opinion this case does not require any detailed consideration of what was said in those authorities.

52 Kennedy J has set out at par [9] the portion of the remarks of the learned sentencing Judge in which his Honour gives his reasons for ordering indefinite imprisonment. The criticism made by the applicant is that his Honour, in saying that he concluded that the applicant "will be a danger to part of society because of a clear risk that he will commit other indictable offences" said no more than that there was a risk of recidivism generally and this was insufficient within the terms of s 98.

53 It will be noted, however, that his Honour referred to a danger to part of society and that is consistent with the terminology employed by s 98(2). It seems to me to be clear that within the terms of that subsection, his Honour's finding is to be taken as expressing his satisfaction on the balance of probabilities that when the applicant would be released from custody in respect of the term of imprisonment imposed for the offence of indecent dealing, he would be a danger to that part of society which was young female children because of the risk that he would commit other

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indictable offences, being offences of a sexual kind against such children, a matter falling squarely within s 98(2)(b). His Honour's remarks otherwise discussed the applicant's history and his responses to treatment and the previous offences of which he had been convicted, all matters falling squarely within s 98(2)(c). In my opinion there is nothing to indicate that his Honour misconceived in any relevant way the nature of the discretionary judgment which had to be made if the power to order indefinite imprisonment under the section was to be used.

54 The applicant's second challenge to that order is based squarely upon the sufficiency of the evidence before the learned sentencing Judge to justify his discretionary judgment that the exceptional powers contained within the section should be utilised in this case. Kennedy J has discussed that evidence in detail and, as I have said, it was reviewed by the learned sentencing Judge who made appropriate findings of fact upon it during the course of his sentencing remarks. It is not contended that he overlooked any of the evidence which included, significantly, the applicant's criminal history and what was described as a specialist report emanating from the sex offender treatment unit of the Ministry of Justice. The author of the report was a social worker, but she had twice interviewed the applicant and had discussions with the applicant's community corrections officer, his sister and his defacto spouse. She had also reviewed the departmental documentation which she described as including previous reports.

55 The applicant was born in 1961. By 1985 offences of wilful exposure and loitering were appearing on his record. In 1991, at the age of nearly 30, the applicant was convicted in the Supreme Court of 21 offences of aggravated indecent assault, 4 offences of aggravated sexual assault and 7 offences of wilful exposure. These were said to be offences committed against children within a familial relationship and apparently included instances of actual sexual penetration. The applicant was sentenced to what is said to be an aggregate term of 7 years and 8 months imprisonment with eligibility for parole. Prior to that he had served only short terms of imprisonment, including on a previous occasion for a breach of probation for burglary offences having a sexual intent, of which he was convicted in the District Court in 1984.

56 During the service of the term of imprisonment imposed in 1991, indeed for practically the whole of 1993, the applicant attended, and apparently successfully completed, an intensive sex offender treatment programme in prison. He appears to have been released on parole some time early in 1994, but that parole was breached by May of that year and I note that in the District Court in August 1994 he was convicted of two

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offences of indecently dealing with a child who was his lineal relative, a daughter.

57 During the service of the sentence of 2 years imprisonment without eligibility for parole which was then imposed upon him the applicant attended, and again apparently successfully completed, a 13 week pre-release sex offender treatment programme in late 1995. It is not clear when he was next re-released on parole, but that continued to be in respect of the sentences imposed upon him in April 1991 and he remained on parole when he committed this offence of indecent dealing on 18 December 1997.

58 The applicant is obviously himself concerned about what he concedes is compulsive behaviour of a sexually inappropriate kind. He has been involved in such activities since he was a child of 11. He has had a number of partners and has fathered 5 children against some of whom he has committed offences. As at the time when he came to be sentenced he had been, while on bail, attending Sexaholics Anonymous. He had confirmed apparently that he would often choose as partners women with female children in the age group to which he has a sexual attraction.

59 While he was said to be sorry for the commission of the offences, the report said that seemed to have more to do with the prospect of imprisonment and the consequence for a new relationship rather than revealing the capacity for empathy with his victims. The applicant apparently is able to suspend any feeling for his victims in case he should feel upset. He was reported to present a high risk of re-offending in a sexual manner. The final conclusion was that he had "an entrenched range of sexually deviant behaviours" and he was said to be a person:

"who has demonstrated his dangerousness towards female children with whom he comes into contact. He has also developed a range of paraphilic activities, such as wilful exposure and voyeurism which he appears to be incorporating into his sexual offending behaviour. It is concerning that Mr McGarry's current offences appear to have progressed from prior convictions in that an element of predatory behaviour has been introduced into his sexual offending reportoire."

60 To my mind, it cannot be said that the judgment to which the learned sentencing Judge came which caused him to implement the power contained in s 98(1) was not open to him for the reason that there was

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insufficient evidence to support the relevant conclusion that the offender was, or would when released from custody probably be, a danger to that part of society to which his Honour referred by reason of the risk that he would commit further indictable offences of the kind of which his criminal history was redolent.

61 It follows that I would not allow the appeal in respect of the order of indefinite imprisonment, but I would grant the applicant leave to appeal, allow the appeal in relation to the sentence imposed for the offence of indecent dealing, and substitute a sentence of 3 years imprisonment to date from 30 October 1998, for that offence.